# Petition for Writ of Certiorari — Neal v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 818

## Text

83-1695 [i

ON
C8 - Supreme Court, U.S
I fe

Guthe Supreme Court of the Wnited States

OcTOBER TERM, 1983

HERB NEAL,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GENE STIPE
Counsel of Record
MITCHELL LEE
Stipe, Gossett, Stipe, Harper, Estes,
McCune and Parks

323 East Carl Albert Parkway
Post Office Box 1368
McAlester, Oklahoma 74502
(918) 423-0421

Attorneys for Petitioner
April, 1984

YY pp

QUESTION PRESENTED FOR REVIEW

Whether the United States Court of Appeals for the
Tenth Circuit, and the United States District Court for the
Western District of Oklahoma erroneously expanded or ig-
nored this Court’s prior holdings requiring that a mailing
be sufficiently closely related to an alleged scheme to de-
fraud pursuant to Title 18 U.S.C. Section 1341.

a on

TABLE OF CONTENTS

oes PAGE
QUESTION PRESENTED __.. i
OPINION BELOW __. : 1
JURISDICTION . 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED IN THIS CASE 2
STATEMENT OF THE CASE -_. )
A. Procedural Background of the Case —_..._ H)
B. Relevant Facts Underlining the Petitioner’s
TENE EDT DON ye AE OOO 6
EXISTENCE OF JURISDICTION BELOW 8
REASON FOR GRANTING THE WRIT:

I. The finding of the Trial Court and the Court of
Appeals that the mailings in Petitioner’s case
were an integral part of a scheme to defraud is
in direct conflict with this Court’s decisions 9

CONCLUSION -___... 22

APPENDIX A—
Opinion of the United States Court of Appeals for
the Tenth Circuit.

APPENDIX B—
Petition for Rehearing

APPENDIX C —
Order Overruling Petition for Rehearing

—ili—

TABLE OF AUTHORITIES

Cases PAGE(S)
Kann v. United States, 323 U.S. 81 (1944) ss —i(ti«id
Parr v. United States, 363 U.S. 370 (1960) _... 13, 15
Pereira v. United States, 347 U.S. 1 (1954) 14

United States v. Bottom, 638 F.2d 781 (5th Cir. 1981) 19-20
United States v. Lynn, 461 F.2d 759 18
United Sttaes v. Maze, 44 U.S. 395 (1974) 8, 14-18, 19, 20

United States Code
a ceuivsamuaannletkal 2, 5, 8, 13, 22

ie eo sn chopeboncbliuiniincila. 5
Statutes

19 OS. § a3 __ ; 2-4, 15-16

os 9 | ; sees Cin cabanas POE Se 2 oN nC ee ANT 4-5, 16

In the
Supreme Court of the United States
OcTOBER TERM, 1983

HERB NEAL,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

The Petitioner, Herb Neal, requests that a Writ of
Certiorari issue to review the judgment of the United States
Court of Appeals for the Tenth Circuit entered on Septem-
ber 30, 1983, rehearing denied February 17, 1984.

OPINION BELOW

The opinion of the United States Court of Appeals for
the Tenth Circuit is published at 718 F.2d 1505 (10th Cir.
1983). No opinions were rendered by the Trial Court.

JURISDICTION

The Petitioner is seeking a Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit to
review its opinion affirming the Trial Court’s conviction of
the Petitioner. Jurisdiction is invoked under 28 U.S.C. Sec-
tion 1254.

=

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
IN THIS CASE

Title 18 Section 1341 United States Code states:

“Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses,
representations, or promises, or to sell, dispose of, loan,
exchange, alter, give away, distribute, supply or fur-
nish or procure for unlawful use any counterfeit or
spurious coin, obligation, security, or other article, or
anything represented to be or intimated or held out to
be such counterfeit or spurious article, for the purpose
of executing such scheme or artifice or attempting so to
do, places in any post office or authorized depository
mail matter, any matter or thing whatever to be sent
or delivered by the Post Office Department, or takes
or receives therefrom, any such matter or thing, or
knowingly causes to be delivered by mail according to
the direction thereon, or at the place at which it is
directed to be delivered by the person to whom it is
addressed, any such matter or thing, shall be fined not
more than $1,000 or imprisoned not more than five
years, cr both. June 25, 1948, c. 645, 62 Stat. 763; May
24, 1949, c. 139 Section 34, 63 Stat. 94.”

Title 19 Section 339 Oklahoma Statute further states:

“They shall have power:

1. To make all orders respecting the real property of
the county, to sell the public grounds of the county
and to purchase other grounds in lieu thereof; and for
the purpose of carrying out the provisions of this sec-
tion it shall be sufficient to convey all the interests of
the county in such grounds when an order made for
the sale and a deed is executed in the name of the
county by the chairman of the board of county com-

~—

missioners, reciting the order, and signed and acknowl-
edged by him for and on behalf of the county.

2. To audit the accounts of all officers having the care,
management, collection or disbursement of any money
belonging to the county or appropriated for its benefit.

3. To construct and repair bridges and to open, lay
out and vacate highways: Provided, however, that
when any state institution, schoo] or department shall
own, lease or otherwise control land on both sides of
any established highway, the governing board or body
of the same shall have the power to vacate alter or re-
locate said highway adjoining said property in the fol-
lowing manner:

If it should appear that it would be to the best use
and interest of such institution, school or department
to vacate, alter or relocate such highway, the gover-
ning board or body shall notify the board of county
commissioners, in writing, of their intention to hold
a public hearing and determine whether to vacate,
alter or relocate such highway, setting forth the lo-
cation and terminals of said road, and all data con-
cerning the proposed right-of-way if changed or re-
located, and shall give fifteen (15) days notice of such
hearing by publication in some newspaper in the county
or counties in which the road is located, and such hear-
ing shall be held at the county seat of the county in
which the road is located, and if a county line road,
may be heard in either county. At such hearing testi-
mony may be taken, and any protests or suggestions
shall be received as to the proposed measure, and at
the conclusion thereof if the governing board or body
shall find that it would be to the best use and interest
of such institution, school or department, and the pub-
lic generally, they may make an appropriate order
either vacating, altering or relocating said highway,
which order shall be final; provided further, that such

~~

institution, school or department may by agreement
share the cost of changing any such road; and provided
further that no property owner shall be denied access
to a public highway by such order.

4. Until January 1, 1983, to furnish necessary blank
books, plats, blanks and stationery for the clerk of the
district court, county clerk, register of deeds, county
treasurer and county judge, sheriff, county superin-
tendent of schools, county surveyor and county at-
torney, justices of the peace, and constables, to be paid
for out of the county treasury; also a fire-proof vault
sufficient in which to keep all the books, records, vouch-
ers and papers pertaining to the business of the county.

5. To set off, organize and change the boundaries of
townships and to designate and give names therefor:
Provided, that the boundaries of no township shall be
changed within six (6) months next preceding a gen-
eral election.

6. To do and perform such other duties and acts that
the board of county commissioners may be required by
law to do and perform.”

Title 19 Section 347 Oklahoma Statute states:

“Tt shall be unlawful for the board of county commis-
sioners to issue any certificate of indebtedness, in any
form, in payment of or representing or acknowledging
any account, claim or indebtedness against the county,
or to make any contracts for or incur any indebtedness
against the county in excess of the amount then un-
expended and unencumbered of the sum appropriated
for the specific item of estimated needs for such purpose
theretofore made, submitted, and approved or author-
ized for such purpose by a bond issue. All warrants
upon the county treasurer, for a county purpose, shall
be issued upon the order of the board of county com-
missioners, drawn by the county clerk, signed by the

ee a

chairman of the board, and attested by the signature of
the county clerk, with the county seal attached. Each
warrant shall designate the fund, department and ap-
propriation account, and shall further show the nature
of the indebtedness acknowledged by the allowance
of the claim so paid. Whenever a county officer holding
an elective office will not immediately succeed himself
in said office, it shall be unlawful for the board of
county commissioners, during the first six months of
the fiscal year in which said term of office expires, to
approve claims for the operation of said office totaling
in excess of one-half the amount allocated for the op-
eration of said office during said fiscal year, unless
approval in writing is obtained from the county excise
board and any claim in excess thereof in any warrant
issued pursuant thereto shall be null and void.”

STATEMENT OF THE CASE
A. Procedural Background of the Case

The Petitioner herein, Herb Neal, was initially indicted
on April 8, 1982, by a Federal Grand Jury in the Western
District of Oklahoma. Thereafter, on May 7, 1982, a super-
seding indictment was returned, charging Petitioner with
thirty-four (34) Counts of having devised and intending
to devise a scheme to defraud the Counties of the State of
Oklahoma, and using the mails in furtherance of this fraud,
in violation of Title 18, U.S.C. Sections 1341 and 1342.

The trial of the case commenced on August 16, 1982,
and the jury returned its verdict of guilty on Counts 1
through 22 and 24 through 34 on August 24, 1982. The jury
returned a finding of not guilty as to Count 23.

On October 14, 1982, the Honorable Fred Daugherty,
United States District Judge, sentenced the Petitioner to

_ a

the custody of the Attorney General on Count 1 for a period
of five (5) years and a One Thousand Dollar ($1,000.00)
fine; on Count 2 for five (5) years consecutive to Count 1
with a One Thousand Dollar ($1,000.00) fine; and on Counts
3 through 22 and Counts 24 through 34 to run concurrent to
Count 1.

The Petitioner thereinafter timely filed his appeal to
the United States Court of Appeals for the Tenth Circuit
which rendered its opinion affirming the trial court on
September 30, 1983. A copy of the opinion of the United
States Court of Appeals for the Tenth Circuit is attached
hereto as Appendix “A”.

The Petitioner herein timely petitioned the Court of
Appeals for a rehearing in his case, with the Petition for
Rehearing being denied by the Court of Appeals on Feb-
ruary 17, 1984. A copy of the Petition for Rehearing and
the Tenth Circuit Opinion overruling same are attached
hereto as Appendices “B” and “C”.

B. Relevant Facts Underlining the
Petitioner’s Conviction

The Petitioner’s case is one of many that arose from an
extensive investigation by the F.B.I., the LR.S., and the
United States Attorneys for Oklahoma in the payment to
numerous County Commissioners of kickbacks, by suppliers
of equipment or matericis purchased by the various counties
in Oklahoma for road and bridge building and maintenance.
During the period set forth in the indictment, the Petitioner
worked as a salesman for three companies in Ponca City,
Oklahoma, that supplied such materials. The 34-Count in-
dictment which charged the Petitioner was based upon

‘nile

allegations that the Petitioner herein, and others, devised
and intended to devise a scheme and artifice to defraud
the counties and the citizens of these counties in the State
of Oklahoma by depriving them of their right to have
county business conducted openly, honestly, impartially,
and free from corruption and undue influence by their
elected County Commissioners, and to use the United States
Mails in furtherance of the scheme.

The indictment alleged, and the proof at trial showed,
that the alleged use of the mails in furtherance of the al-
leged scheme was the payment of County Warrants or
checks, to the suppliers for whom the Petitioner worked.
The source of the alleged kickback money was never al-
leged, nor proven, to bear any relationship to either the
purchase price of the equipment, or the mailing of the
County Warrants.

Indeed, the Government’s allegations as set forth in the
indictment, relative to the mailings, was as follows. The
Petitioner would submit invoices to the counties which
claimed the sale and delivery of road and bridge building
and maintenance materials or supplies, thereby causing
the County Clerk’s Offices to encumber funds as approved
by the Commissioner and thereafter send through the U.S.
Mails envelopes containing County Warrants as payment
for supplies that were delivered. Further, that at some
point in time, the Petitioner would pay cash kickbacks to
various County Commissioners.

The Petitioner moved for a Judgment of Acquittal at
the close of the Government’s case in the trial court, claim-
ing that the evidence had failed to show that the mailings

willie

were an integral part of any scheme. The Motion was over-
ruled, and was subsequently renewed at the close of all the
evidence, and was again overruled. Finally, after the ver-
dict, the Petitioner moved for a judgment of Acquittal or
in the alternative for a new trial, asserting the same argu-
ment relative to the failure of the Government’s evidence
to show that the mailings were an integral part of the
scheme as alleged and proven. This argument was sub-
mitted to the United States Court of Appeals for the Tenth
Circuit, which also rejected same. The Petitioner argued
in the trial court, and on appeal, that under this Court’s
decision in United States v. Maze, 414 U.S. 395 (1974), the
allegations as contained in the indictment, and proof ad-
duced at trial, clearly showed that the mailings involved
in Petitioner’s case were not an integral part of any scheme _
to defraud the citizens of the counties of the State of Ok-
lahoma.

EXISTENCE OF JURISDICTION BELOW

Petitioner was convicted in the United States District
Court for the Western District of Oklahoma on 33 Counts
of a 34-Count indictment charging a violation of Title 18
U.S.C. Section 1341.

a

REASON FOR GRANTING THE WRIT

The United States Court of Appeals for the Tenth Cir-
cuit, in affirming the trial court, has sanctioned a departure
of the trial court from the accepted and usual course of
judicial proceedings in that both the trial court and the
Court of Appeals seemingly ignored this Court’s applicable
decisions.

I. THE FINDINGS OF THE TRIAL COURT AND THE
COURT OF APPEALS THAT THE MAILINGS IN
PETITIONER’S CASE WERE AN INTEGRAL PART
OF A SCHEME TO DEFRAUD IS IN DIRECT CON-
FLICT WITH THIS COURT’S DECISIONS.

As stated above, the Petitioner herein was charged
with devising a scheme to defraud counties and the citizens
of the counties of the State of Oklahoma by depriving them
of their right to have county business conducted openly,
honestly, impartially, and free from corruption and undue
influence by their elected County Commissioners. It was
further alleged that the Petitioner used the United States
Mail in furtherance of the scheme. Count 1 of the indict-
ment, which is essentially identical to the remaining Counts,
is as follows:

“The Grand Jury charges:

COUNT 1

1. During the period commencing on or about Jan-
uary 1, 1975, and continuing thereafter to on or
about April of 1981, the exact daies of which are
to the Grand Jury unknown, in the Western Dis-
trict of Oklahoma, and elsewhere,

———HERB NEAL————
the defendant herein, while acting as a salesman
for Evans and Associates Construction Co., Inc.,

aa Te

Redstone Industries, Inc., and Stewart Supply
Company, Inc., (hereinafter referred to as “The
Companies”), all of Ponca City, Oklahoma, com-
panies engaged in the business of selling road and
bridge building and maintenance materials and
equipment to county governments, devised and in-
tended to devise a scheme and artiface to defraud
the counties and the citizens of these counties in
the State of Oklahoma by depriving them of their
right to have county business conducted openly,
honestly, impartially and free from corruption and
undue influence by their e'ected County Commis-
sioners and to use the United States Mails in fur-
therance of the scheme.

The scheme to defraud was in substance, as follows:

2. As apart of said scheme, HERB NEAL,, did cause
to be submitted invoices to the counties which
claimed the sale and delivery of road and bridge
building and maintenance materials or supplies,
thereby causing the County Clerk’s Offices to en-
cumber funds as approved by the Commissioner
and thereafter send through the U.S. Mails en-
velopes containing County Warrants as payment
for supplies that were delivered.

3. As part of said scheme, HERB NEAL paid cash
kickbacks to various County Commissioners, in-
eluding Dwight William Hughey of Alfalfa County;
George O’Neil Gray of Alfalfa County; James Leon
Roe of Payne County; Leonard Johanning of Grant
County; Clifton C. Honeyman of Grant County;
and Robert Forbes White of Payne County; in con-
nection with sales of road and bridge building and
maintenance materials from The Companies.

4. It was a further part of the scheme that HERB
NEAL, while acting as a salesman for The Com-
panies, would enter into lease-purchase agreements

—j_

for the road building and maintenance equipment
with certain counties and in connection therewith
did pay certain County Commissioners cash kick-
backs for their purchase of said equipment. As a
further part of the scheme, the lease-purchase
agreements would be assigned to a bank doing
business with the County and thereafter said
County would make regular payments to the bank
through the mailing of County Warrants through
the U.S. Mails to the bank.

4. That on or about April 2, 1979, the exact date of
which is to the Grand Jury unknown, in the West-
ern District of Oklahoma,

————HERB NEAL—————

the defendant herein, for the purpose of executing
the aforesaid scheme to defraud, and atetmpting
so to do, did cause to be placed in an authorized
mail depository to be sent and delivered by the
U.S. Postal Service from Alfalfa County, Okla-
homa, to Stewart Supply Company, Inc., Ponca
City, Oklahoma, an envelope containing Warrant
Number 815, in the amount of $852.95 and War-
rant Number 861, in the amount of $100.00, and
did pay a cash kickback to George O’Neil Gray;
all in violation of Title 18 United States Code,
Section 1341 and 2.”

As stated by the indictment, it is alleged that the Pe-
titioner, a material supplier, somehow caused the County
Clerk’s Offices to encumber funds. Thereinafter, the var-
ious counties would send County Warrants for payments
of the delivered supplies. These County Warrants would
be mailed to the supplier, when a sales transaction was con-
summated, or would be set to a bank, in the event of a
lease-purchase arrangement.

aaliiinn

The evidence presented by the Government showed
that the Petitioner worked for Stewart Supply, relative to
Counts 1 through 9 and 11 through 21 of the indictment.
One witness for the Government, Dorothy Griffin, testified
that she had met with Ralph Stewart, owner of Stewart
Supply, to discuss making invoices for Stewart Supply, in
order that Stewart Supply would have money to operate
on with Commissioners. The substance of this alleged
scheme was that Dorothy Griffin, owner of Griffin Lumber
Company, would supply vendors with phony invoices to
cover sales of non-existent materials to counties. A vendor-
supplier would then give Griffin a check for the non-exis-
tent material which she would cash. She would thereinafter
return 90 to 95% of the money to the vendor-supplier and
keep the remaining 5 to 10%. Griffin testified that during
her meeting with Ralph Stewart, the Petitioner herein was
present, but took no part in the conversation. The Govern-
ment’s theory, relative to the time period when Petitioner
worked for Stewart Supply, apparently was that the source
of any funds for kickbacks paid by the Petitioner were the
phony invoices from Dorothy Griffin. It is important to
note, however, that these alleged phony invoices were not
involved with any Oklahoma Counties or bogus sales to
any Counties.

Other than Griffin’s testimony that she was creating
invoices for Stewart Supply, there was absolutely no proof
offered, that the Petitioner had any access to any alleged
funds supplied by Griffin. Indeed, Ralph Stewart, the
owner of Stewart Supply, testified that the Petitioner was
given no money from Stewart Supply to pay kickbacks.
(Trial transcript Volume 3, page 716, lines 19-22). No other

=

evidence was presented by the Government to indicate any
source of funds potentially available to the Petitioner while
working at Stewart Supply other than through the invoices
with Dorothy Griffin.

In regard to Redstone Industries and Evans & Associ-
ates, relative to Counts 10 and 22 through 29 of the indict-
ment, the Government’s evidence completely failed to show
from what source alleged kickbacks were paid, except pos-
sibly from Petitioner’s own personal funds. The testimony
of the witnesses from Redstone and Evans refuted any
theory that potential funds for kickbacks came from either
employer. (Trial transcript Volume 1, page 236, lines 3
through 11, 17 through 19, and page 238, line 7). Addi-
tionally, it was shown that Petitioner received only a salary
while working for these entities and was paid no commis-
sion for his sales. As the evidence showed that funds for
kickbacks were not related to payment by the county to
Stewart Supply, Redstone or Evans, the mailing of the
County Warrants simply was not shown to have been the
funds for the payment of the kickbacks, or in furtherance
of any scheme to defraud.

As this Court is well aware, the Federal Mail Fraud
Statute, Title 18 U.S.C. Section 1341, does not purport to
reach all frauds, but only those limited instances in which
use of the mails is an integral part of the execution of the
fraud, leaving all other cases to be dealt with by the appro-
priate State law. Kann v. United States, 323 U.S. 83, 56 S.Ct.
148, 89 L.Ed. 88 (1944); Parr v. United States, 363 U.S. 370,
80 S.Ct. 1170 (1960).

The Petitioner would submit that the dispositive issue

in this case is simply whether the mailings were sufficiently

snilltiian

closely related to the alleged scheme, as opposed to whether
the mails were used remotely in relation to the alleged
scheme. As this Court stated in United States v. Maze, 414
U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974):

“T1] In Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct
358, 363, 98 L. Ed. 435 (1954), the Court held that one
‘causes’ the mails to be used where he ‘does not act
with knowledge that the use of the mails will follow
in the ordinary course of business, or where such use
can reasonably be foreseen, even though not actually
intended. .. .” We assume, as did the Court of Appeals,
that the evidence would support a finding by the jury
that Maze ‘caused’ the mailings of the invoices he
signed from the out-of-state motels to the Louisville
bank. But the more difficult question is whether these
mailings were sufficiently closely related to respon-
dent’s scheme to bring his conduct within the statute.”
(At page 648).

It would appear, therefore that the Government must
contend that the mailings of the warrants were an integral
part of the scheme, it is clear, however, that the alleged
scheme was not contingent upon the mailing. As related
in the indictment, the purported scheme devised by the
Petitioner was to deprive the citizens and the counties of
the State of Oklahoma of their right to have county busi-
ness conducted openly, honestly, impartially, and free from

corruption and undue influence by their elected County
Commissioners, and the use of the United States Mails in
furtherance of the scheme. In other words, to fall under
the Federal Mail Fraud Statute, the mailing of the County
Warrants must have been an integral part of the scheme to
defraud, with the mailing sufficiently closely related to the
purported scheme.

=

The Petitioner would submit that it was immaierial to
the scheme as alleged and proven, whether any County
Warrants were ever actually mailed. As stated hereinabove,
the Government wholly failed to show that County War-
rants were the source of any money for kickbacks. In-
deed, the evidence presented showed that the only poten-
tial source of founds for kickbacks was either Dorothy
Griffin, or the Petitioner’s own money. There was never
any proof shown by the Government that the goods sold
in each Count of the indictment were either overpriced, or
not delivered. It would appear clear that the failure of
proof logically relates to the nebulous scheme alleged in the
indictment. Obviously, if the Government had any proof
that the Warrants were in fact the source of the kickbacks,
the scheme would have alleged that the Petitioner paid
kickbacks, and was able to pay kickbacks, because of the
mailings of padded, or bogus County Warrants. Not one
Count of the indictment does so.

Petitioner would also submit that once the goods were
delivered to the county, that the mailing of the Warrants
were, in effect, compelled by State law. As such, this case,
and the other County Commissioner cases, are strikingly
similar to Parr v. United Stutes, 363 U.S. 370, 80 S.Ct. 1170
(1960). In any event, as hereinabove mentioned, the fru-
ition and execution of the purported scheme to defraud was
not shown to depend on any mailings of County Warrants.

The Petitioner would submit that the circumstances in
the instant case are similar to the Parr case in the follow-
ing respects. Oklahoma State law compels County Commis-
sioners to purchase materials, supplies and equipment to
maintain and build their roads and bridges. Title 19 O.S.

= =

Section 339. State law further requires payment for the
county obligations to be made by County Warrant. Title
19 O.S. Section 347. Since the county is compelled to issue
Warrants for payment of its obligations, the County Clerk
is compelled to use the mails to perform his or her legal
duties. All purchases made by the county for county pur-
poses are paid for by County Warrants. Under Oklahoma
law, there is simply no other way a county in the State of
Oklahoma can pay its bills. Therefore, the mailings of
County Warrants, for payment of county obligations, can-
not be said to be unlawful and a plot incident to an essen-
tial part of a scheme within the Mail Fraud Statute, even
assuming a kickback is allegedly paid after the Warrant is
cashed. The mailings are made, not for purpose of execut-
ing a scheme to defraud, but for the purpose of paying the
counties’ bills.

Admittedly, if the Government had alleged and proven
that Petitioner’s sales to the various counties relative to
the indictment were based upon non-existent equipment,
whereby the county received no supplies or materials, then
it could be argued that the mailings of the County War-
rants would clearly be unlawful under the Mail Fraud
Statute.

In relation to the Counts of the indictment relating to
equipment sales through lease-purchase agreements, Counts
30 through 34 of the indictment, the alleged scheme was
even more unrelated to the mailing of the Warrants. In
those Counts, the Warrants were mailed to the bank for
payment of the equipment, subsequent to receipt by the
vendor of the proceeds from the sale (T.T. Vol. 1, p. 225,
lines 22-25, p. 256, lines 1-11). Assuming arguendo, the

_—

existence of a scheme, neither the Petitioner nor his em-
ployers would care whether County Warrants were ever
mailed to the banks (T.T. Vol. I, p. 161, lines 7-20).

In the Maze case, this Court determined that the “mail-
ing” must be for the purpose of executing the scheme in
a criminal case brought under the Mail Fraud Statute. In
Maze, the defendant obtained a credit card belonging to
another, and obtained food and lodging at motels in Cali-
fornia, Florida and Louisiana. Each of these businesses sent
to the Citizens Fidelity Bank & Trust Company in Louis-
ville, which had issued the card, invoices representing goods
and services furnished to the defendant. The defendant was
convicted under the Mail Fraud Statute; however, the Court
of Appeals reversed the verdict and this Court affirmed the
decision determining that the mailing by the establishments
to the bank did not constitute a mailing for the purpose of
executing the scheme. In that case, the Government con-
tended that the delay in mailing the invoices to the bank
allowed for additional use of the card without detection.
In affirming the Circuit Court’s decision, this Court stated:

“We do not believe that Sampson sustains the Govern-
ment’s position. The subsequent mailings there were
designed to lull the victims into a false sense of se-
curity, postpone their ultimate complaint to the author-
ities, and therefore make the apprehension of the de-
fendant less likely than if no mailings had taken place.
But the successful completion of the mailing from the
motel owners here to the Louisville bank increased the
probability that respondent would be detected and ap-
prehended. There was undoubtedly delay in transmit-
ting invoices to the Louisville bank, as there is in the
physical transmission of any business correspondence
between cities separated by large distances. Mail serv-

estilo

ice as a means of transmitting such correspondence
from one city to another is designed to overcome the
effect of the distance which separates the places. But
it is the distance, and not the mail service, which causes
the time lag-in the physical transmission of such cor-
respondence. . . . Congress could have drafted the mail
fraud statute so as to require only that the mails be
in fact used as a result of the fraudulent scheme. But
it did not do this; instead, it required that the use of
the mails be ‘for the purpose of executing such scheme
or artifice ...’ Since the mailings in this case were
not for that purpose, the judgment of the Court of Ap-
peals is affirmed.”

The Maze case was preceded by a similar credit card
case determined by the United States Court of Appeals for
the Tenth Circuit. In United States v. Lynn, 461 F.2d 759
(10th Cir. 1972), the defendants obtained a credit card,
owned by another party, and charged purchases in the State
of Wyoming. Subsequent thereto, invoices were mailed
from the establishments where goods and services were
obtained to the issuing bank for payment. As in and prior
to Maze, s' pra, the United States Court of Appeals for the
Tenth Circuit reversed the defendant’s conviction on the
mail fraud count determining that the mails were not used
for execution of the scheme. There, the Court stated:

“The gist of the offense of mail fraud lies in the use of
the mails to obtain money or property by fraudulent
means. Utilization of the mails after the scheme has
been fully consummated and completed in all of its
parts cannot supply the essential ingredients for this
offense. An examination of Tenth Circuit decisions
affirming convictions of violation cases consciously
availed themselves of the use of the mails in comple-
tion of their scheme. We view the transaction in Little

ee

—

America and Cheyenne, Wyoming, by use of the Ros
credit card, as completed when the goods were received
in exchange for the credit card sales drafts. It is im-
material what method the retail establishments chose
to collect from BankAmericard. Use of the mails was
not an essential element of this scheme. The Federal
Mail Fraud Statute does not purport to reach all frauds,
but only those instances in which the use of the mails
is a part of the execution of the fraudulent scheme.
All other cases are to be dealt with by appropriate
state law.”

It should be noted that, in both cases, the Court de-
termined that the scheme had been completed; however,
that fact alone is not determinative as other cases have
held mailing may be an integral part of the scheme even
though subsequent to fruition of the scheme. The usual
premise of alleging that the scheme was completed, prior
to the mailings, arises solely from the inference that a mail-
ing could not be “integral” if the scheme was already com-
pleted.

The Government, in its response to the Petitioner’s
Motion for New Trial, relied on the case of United States v.
Bottom, 638 F.2d 781 (5th Cir. 1981), a Fifth Circuit case
to distinguish the case at bar from Maze, supra, and Lynn,
supra. In Bottom, the defendants were convicted subse-
quent to an alleged scheme whereby, they as County Com-
missioners, participated in receiving money from “padded”’
and “bogus” invoices. In that scheme, pipe was sold by a
vendor, Baldwin, to the county in instances where less pipe
was delivered exhibited on delivery tickets and where no
pipe was delivered. In each of these instances, the County
Commissioner was paid, in cash, for one-half of the profits
from such sales. The County Commissioners were paid

-_—

prior to receipt of checks from the county for the pur-
chases and the defendants alleged that the scheme was
completed prior to the mailing of checks to Baldwin for
the sales. Unfortunately for the defendants, one act re-
mained for completion of the scheme. The. county paid on
the 10th of the month and subsequent to these payments,
the County Commissioners initialed the checks when re-
turned from the bank to finally approve the sale and pay- —
ment. The Court rejected the arguments of the defendants
and their reliance of Maze, supra, by distinguishing the cir-
cumstances. The Court went on to hold:

“The fraudulent scheme in the instant case employed

mailings which were integral to the execution of the

fraudulent plans and which were not made after the

fruition of the fraud but were necessary to complete

the scheme. The scheme was not complete when Baid-

win paid the defendants ‘up-front’ the bogus or padded |
amounts in the invoices because Baidwin still needed |
the assistance of the defendants, who were the only |
ones who knew about the fraud and who had control

of all the paperwork in their districts, to initial copies

of the checks which reflected payment of the phony

invoice attached to it. Furthermore, the county was

not defrauded by the commissioners, the money re-

leased and the checks mailed to Baldwin. From the

beginning of the scheme the defendant commissioners,

who knew that the invoices were bogus or padded,

were also aware that Baldwin would be paid by a

check mailed to him by the county. Therefore, in this

case, the mailing of the checks was an essential step |
integral to the completion or fruition of the scheme.” |

At first blush, it appears that the Bottom case is more
closely akin to the case at bar than Maze, supra. However,
it must be remembered that, in the case at bar, the various

—)

banks were the recipients of the County Warrants, and not
Stewart or Redstone. Again, in the case at bar neither
Petitioner nor his employers would care if the bank was
ever paid the monthly installments, as they had already
received their proceeds from the bank. It is also clear that
the invoices in the Bottom case were padded or bogus.

Petitioner would submit that the trial court and the
Circuit misconstrued or ignored the Maze, Parr, and Kann
cases. Not because the scheme was completed prior to the
mailing, but simply because the mailing of the monthly
lease-purchase payment was totally unrelated and not an
integral part of the alleged scheme.

Although this theory is more easily realized in lease-
purchase situations, the same theory applies in relation to
the sales of materials by the Petitioner. The mailings of
the County Warrants to the vendors, Redstone and Stewart,
were unnecessary for completition of the alleged scheme
as the Government’s evidence does not indicate any county
funds were the source of Petitioner’s alleged kickbacks.
Obviously, the mailings of these Warrants were remotely
related to the transactions, however, such use of the mails
was not an integral part of the scheme and played no role
in its completion.

Although the circumstances pertaining to the Counts
of the indictment in which sales of materials were made,
are different in that the Petitioner paid the alleged kick-
backs subsequent to the mailings, this fact alone does not
result in a reasonable determination that they were a step
toward completion of the scheme. Under the Government’s
evidence, the scheme would reach fruition even though
Warrants were never mailed to the vendors.

ia

=

CONCLUSION

The opinion of the United States Court of Appeals for
the Tenth Circuit affirming the Trial Court’s conviction of
the Petitioner herein erroneously ignores or expands this
Court’s prior holdings which require that a mailing, for
purposes of Title 18 U.S.C. Section 1341, be sufficiently
closely related to the alleged mail fraud.

For the reasons set forth hereinabove, the Petitioner
requests that the Writ of Certiorari be granted.

Respectfully submitted,

GENE STIPE
Counsel of Record

MITCHELL LEE
Stipe, Gossett, Stipe, Harper, Estes,
McCune and Parks

323 East Carl Albert Parkway
Post Office Box 1368
McAlester, Oklahoma 74502
(918) 423-0421

Attorneys for Petitioner
April, 1984

APPENDICES

APPENDIX A

PUBLISH
[Filed Sept. 30, 1983]

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, )
Plaintiff-Appellee. )

V. ) No. 82-2309
)
HERB NEAL, )
)

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DistrIcT COURT
WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CR-82-101-D)

Gene Stipe (Robert K. McCune with him on the brief) of
Stipe, Gossett, Stipe, Harper, Estes, McCune and Parks,
Oklahoma City, Oklahoma, for Defendant-Appellant.

Susie Pritchett, Assistant United States Attorney, (William
S. Price, United States Attorney, Oklahoma City, Oklahoma,
was also on the brief) for Plaintiff-Appellee

Before HOLLOWAY, McWILLIAMS and SEYMOUR,
Circuit Judges

HOLLOWAY, Circuit Judge

This is a direct appeal by the defendant-app¢« ‘lant Herb
Neal from his convictions on thirty-three counts of a thirty-
four count indictment charging him with mail fraud and
aiding and abetting mail fraud, in violation of 18 U.S.C.

2a

[APPENDIX]

§ 1341 and 18 U.S.C. § 2.1 Neal was sentenced to terms of
five years’ imprisonment on each of his convictions, Count
II to run consecutively to Count I and Counts III through
XXII and XXIV through XXXIV to run concurrently to
Count I. He wsa also fined $1,000.00 for each of the first
two counts.

Viewing all the evidence, direct and circumstantial,
together with all reasonable inferences therefrom, in the
light most favorable to the Government as we must on this
appeal from a guilty verdict, United States v. Twilligear,
460 F.2d 79, 81-82 (10th Cir.), the evidence tended to show
the following:

I
Background

This case is one of many that arose from an extensive
investigation by the F.B.I., the I.R.S., and the United States
Attorneys for Oklahoma into payment to numerous county
commissioners of kickbacks, by suppliers of equipment or
materials purchased by the counties for road and bridge
building and maintenance. During the period covered by
the indictment Neal worked as a salesman for three com-
panies in Ponca City, Oklahoma, that supplied such ma-
terials. All thirty-four counts were premised on allegations
that Neal and others devised a scheme to defraud various
counties and the citizens thereof “by depriving them of their
right to have county business conducted openly, honestly,
impartially, and free from corruption and undue influence
by their elected County Commissioner and to use the...
mails in furtherance of the scheme.” (I R. 93). Cf. United
States v. Mandel, 591 F.2d 1347, 1362 (4th Cir.), cert. denied,
445 U.S. 961 (bribery of public official satisfies fraud ele-
ment of the mail fraud statute); United States v. Gann,
No. 82-1581, _.... F.2d .. , .—. n.2 (10th Cir.).

1 Neal was found not guilty on count twenty-three. (VII R. 1007-08).

Fe eke et ie en a ee ee a oe

|
|
b |
;
3
4
|

3a

[APPENDIX]
Seven different county commissioners testified at trial
that they had received kickbacks from Neal.? (E.g., V R.
248-50; VI R. 322-24, 409, 483, 547-48, and 573). Some stated
that they had received kickbacks on every purchase from
Neal while others testified that the kickbacks were only
occasicnal. Moreover, some commissioners testified that not
all suppliers gave kickbacks but they always tried to do
busine’. with suppliers like Neal who did give kickbacks.
(E.g., V R. 325). The payments generally approximated
10% of the purchase price. Some commissioners further
testified that they had accepted “50-50 splits” from Neal,
also known as “split” or “blue-sky” deals, in which the
commissioner would order materials or supplies from Neal,
the county clerk would issue a warrant, 1.e., check, to Neal
as payment for the goods, the goods would not be delivered,
and the commissioner and Neal would split the amount of

the warrant between themselves.

Oftentimes the kickback was agreed to before a pur-
chase was consummated, but generally the agreement was
tacit that a kickback would be forthcoming. The kickback
payment generally occurred after the county clerk had
mailed the warrant to Neal and the material or supplies
were delivered. Furthermore, the kickbacks were paid in
cash and in a surreptitious manner with no one present but
Neal and the commissioner, frequently while the parties
were alone in Neal’s car. In addition, six county clerks
testified that warrants in payment for materials or supplies
were always mailed unless the supplier was local and per-
sonally picked up the warrant. (V R 43, 50, 110, and 183).
With respect to the counts on which these convictions re-
sulted, mailing of the warrants was proved.

2 Each of these witnesses testified that they had entered into an agree-
ment with the United States Attorney to fully cooperate with the in-
vestigation in exchange for being allowed to plead guilty to one count of
conspiracy to commit mail fraud and to tax evasion, thus relieving the
commissioners of the threat of numerous prosecutions based on their in-
dividual transactions. (See e.g., III R. Pl. Exh. 47).

40
[APPENDIX]

In his defense, Neal offered the testimony of several
county commissioners to the effect that he never offered or
paid them kickbacks, and that of several character wit-
nesses who testified that Neal had a good reputation in his
community. Neal also took the stand and testified that he
had never paid a kickback, that the Government’s witnesses
were lying, and that some of the Government’s witnesses
had told him that they were simply going to tell the F.B.I.
whatever they wanted to hear.

For reversal, Neal asserts that the trial court erred
(1) in denying his motion for judgment of acquittal or in
the alternative for a new trial because the evidence was
insufficient to prove that the mails were used in furtherance
of a scheme or artifice to defraud; (2) in overruling his
motion in limine regarding evidence of the relationship be-
tween a Government witness and two of Neal’s in-laws;
(3) in not granting a pretrial request for a change of venue
based on prejudicial pretrial publicity, and; (4) in denying
his motion in limine concerning the introduction of evidence
outside the times and places set forth in the indictment.

II

At the close of the Government’s case Neal moved for
a judgment of acquittal, claiming that the evidence had
failed to show that the mailings were an integral part of
the scheme. (VII R. 702-09). The motion was overruled,
and then renewed at the close of all the evidence, and
again overruled. (I R. 163-69; VII R. 710-11 and 958-59).
Again, after the verdict Neal moved for a judgment of ac-
quittal or, in the alternative, for a new trial, asserting the
same argument. (I R. 187-91); see F.R.Crim.P. 29(c). On
appeal Neal asserts that the trial court erred in overruling
these motions in that the evidence failed to show that the
use of the mails was an integral part of the scheme. (Brief
of Appellant at 5 and 9).

Neal devotes the majority of his argument on this issue
to Counts XXX through XXXIV, Counts that charged kick-

1 iv ewtabae™s

.
:
§
i
;

da

[LAPPENDIX)
backs from lease-purchase transactions rather than direct
purchases.* Relying on United States v. Maze, 414 U.S. 395
(1974), Parr v. United States, 363 U.S. 370 (1960), Kann
v. United States, 323 U.S. 88 (1944), and United States v.
Lynn, 461 F.2d 759 (10th Cir.), inter alia, Neal contends
that the mailings by the counties to the banks of monthly
lease-purchase payments were “totally unrelated and not
an integral part of the scheme,” reasoning that the kick-
backs had been paid prior to the use of the mails and thus
the mailings played no role in the completion of the scheme.
(Brief of Appellant at 9-10). Furthermore, Neal contends
that the Government’s proof as to the us2 of the mails was
inadequate in the counts alleging kickbacks on direct pur-
chases as well. (Id.).

We see no need to delve into these arguments in detail
as we have considered and rejected them in related cases
filed today. See United States v. Primrose, No. 82-1842, __.
F.2d ___, (10th Cir.); United States v. Gann, No. 82-1591,
_.. F.2d __.. (10th Cir.); and see United States v. Whitt,
No. 82-2231, _.. F.2d ___, (10th Cir.); United States v. Bos-
ton, No. 82-1323, ... F.2d _. (10th Cir.).

In Primrose we held that the mailing of the warrants
from the county clerk to the vendor was an essential part
of the scheme, regardless of whether the kickback was paid
before or after the mailing. Primrose, supra, at ___, slip op.
at 10-12. There, the defendant was a country commissioner
and the argument that the scheme was complete upon re-
cept of the kickback was rejected. Here, Neal being the
salesman for various vendors, the mailing of warrants to
the vendors is even more closely within the scheme. Like-
wise in Gann, a case involving a lease-purchase agreement,

3 In the case of a lease-purchase agreement the county would lease

equipment from the suppiier with an option to purchase the equipment
at the end of the lease. The supplier would assign its rights under the
lease to a bank, Neal would pay a kickback to a county commissioner,
and the county would issues monthly payments (warrants) to the bank.

6a
{APPENDIX}
we found the mailing of a warrant from the county clerk
to a bank to be an integral part of the entire transaction
and in furtherance of the scheme to defraud. Gann, supra,
at __ , slip op. at 5-6.

The circumstances in the instant case are similar to
those in Primrose, Gann, Whitt, and Boston and the mail-
ings in all these cases were sufficient to bring the charges
within the purview of § 1341. Viewing the evidence in the
light most favorable to the Government as we must in
reviewing the Distirct Court’s refusal to grant a motion for
judgment or acquittal, United States v. Tager, 481 F.2d 97,
100 (10th Cir.), cert. denied, 415 U.S. 914, we conclude that
the trial court did not err and that Neal’s argument that
the evidence was insufficient to support the mail fraud con-
victions is without merit.

Ill

Neal next contends that the court erred in refusing to
grant his pretrial motion in limine by which he asked the
trial court to direct the Government not to refer to evidence
concerning relationships between Government witness Dor-
othy Griffin and Neal’s father-in-law, Ralph Stewart, or
brother-in-law, Monty Stewart.* (I R. 144). The motion
was overruled. (I R. 146).

Griffin testified that she was the owner of a lumber
company that frequently did business with county commis-
sioners and other suppliers to county commissioners. (III
R. 657). Griffin stated that her company provided a “serv-
ice” to other vendors, among them Stewart Supply Com-
pany. The “service” provided was as follows: a supplier

4 Ralph Stewart was the owner of Stewart Supply Company, one of
the three supply companies which employed Neal as a salesman during
the period covered by the indictment. Monty Stewart was Ralph Stewart's
son and was also employed by Stewart Supply Company.

7a

[APPENDIX)
would give her a check for the purchase of materials or
supplies which neither party ever intended to be delivered,
Griffin would cash the check and return ninety to ninety-
five percent of the cash to the supplier along with a bogus
invoice for the undelivered goods, and Griffin would keep
the balance of the cash as her commission. (VI R. 658-61).
The supplier then used the invoices as a record, which was
false, of the supplier’s expenditures, and as a means of ob-
taining cash to pay kickbacks.

Griffin stated that she provided this “service” for Stew-
art Supply Company while Neal worked there and identi-
fied some eighteen bogus invoices made for Stewart Supply
totalling approximately $80,000.00 worth of goods, as well
as numerous checks from Stewart Supply used to pay for
the invoices. (III R. Pl. exhs. 57, 57A through Q, 58, and
58A through X). Among the checks, Griffin identified one
(III R. pl. exh. 58P), signed by Neal, used as payment for
three phony invoices. (III R. Pl. exhs. 57M, N, and QO;
VI R. 671-74). Indeed, some of the invoices were made out
for materials, such as steel pipe, that were not even sold
by Griffin’s lumber company. She further testified to meet-
ing Ralph Stewart and Neal in an Oklahoma City coffee
shop where Stewart indicated that he wanted some bogus
invoices so that “he would have some money to operate on
with his Commissioners.” (VI R. 662). This was the only
time Griffin ever met Neal. (VI R. 661). She identified him
at trial. (Id.).

On appeal, Neal contends that this testimony was both
irrelevant and prejudicial in violation of Rules 401 and 403
of the Federal Rules of Evidence. Specifically he claims
that the prejudice “arose from the prosecutor’s ability to
inject Ralph Stewart into the trial of this action in order
to attempt to prove that Herb Neal paid kickbacks because
it was company policy.” (Brief of Appellant at 11-12). We
cannot agree.

In order for evidence to be relvant it need only “[tend]
to make the existence of any fact that is of consequence

»

8a

[APPENDIX]

to the determination of the action more probable or less
probable than it would be without the evidence.” Rule 401
F.R.E. Here, the Government had to establish use of the
mails in furtherance of a scheme to defraud in order to
meet its burden in proving a violation of § 1341. A portion
of the scheme alleged was that Neal would pay cask kick-
backs to various county commissioners. The Griffin testi-
mony indicated that Neal was present when Griffin and
Ralph Stewart, Neal’s father-in-law, discussed the purchase
of bogus invoices used as a means of obtaining funds for the
payment of kickbacks. Furthermore, the documentary evi-
dence introduced during Griffin’s testimony showed Neal’s
signature on a check from Stewart Supply Company to
Griffin’s lumber company for more than $4,000.00 worth of
materials and supplies that were never delivered.

The trial court is granted broad discretion in ruling on
the relevance of evidence, see Hackbart v. Cincinnati Ben-
gals, Inc., 601 F.2d 516, 525-26 (10th Cir.), cert. denied, 444
U.S. 931, and this court will not disturb that discretion ab-
sent a clear showing of abuse. Texas Eastern Transmission
v. Marine Office-Appleton & Coax, 579 F.2d 561, 566-67 (10th
Cir.). We feel the questioned testimony and documentary
evidence was probative of a scheme to defraud and find
no abuse of discretion in the trial court’s ruling in that
respect.

We are mindful, however, that relevant evidence should
be excluded if its probative value is substantially out-
weighed by the danger of unfair prejudice.® As with Rule
401, a trial court has broad discretion under the Rule to
determine whether the probative value of the evidence is

* Rule 403 F.R.E. provides:

Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation cf cumula-
tive evidence.

9a

LAPPENDIX)
substantially outweighed by the danger of unfair prejudice.
See Rule 403 F.R.E.; United States v. Franklin, 704 F.2d
1183, 1187 (10th Cir.); United States v. Nolan, 551 F.2d 266,
271 (10th Cir.), cert. denied, 434 U.S. 904. Our review of
the record reveals that the trial transcript includes more
than one thousand pages and Griffin’s testimony covered
only 46 of those pages. Griffin testified that the only time
she met Neal was at her meeting with Ralph Stewart and
that Neal did not play an active role in that meeting. Under
these circumstances we cannot say the trial judge abused
his discretion in admitting this testimony.

IV

Neal argues further that the trial court erred in deny-
ing his pretrial motion to transfer the case to another dis-
trict due to excessive pretrial publicity, citing Sheppard v.
Maxwell, 384 U.S. 333 (1966), inter alia.

In Sheppard, the defendant, who was suspected of mur-
dering his wife, was exposed to extensive pretrial publicity
including a three day televised inquest before an audience
of hundreds of persons, publication of the names and ad-
dresses of the potential jurors in the major local news-
papers more than three weeks prior to trial, and heavy
newspaper, television, and radio coverage calling for the
defendant’s arrest, detailing an extra-marital iove affair,
and revealing that Sheppard had repeatedly refused to take
a lie detector test, among other things.

Except as otherwise permitted by statute or the rules,
a criminal prosecution is to be conducted “in a district in
which the offense was committed.” Rule 18, F.R.Crim.P.
In instances of pretrial publicity, however, Rule 21(a),
F.R.Crim.P., provides as follows:

For Prejudice in the District. The court upon mo-
tion of the defendant shall transfer the proceeding as
to him to another district whether or not such district
is specfied in the defendant’s motion if the court is

10a

[APPENDIX]

satisfied that there exists in the district where the
prosecution is pending so great a prejudice against the
defendant that he cannot obtain a fair and impartial
trial at any place fixed by law for holding court in that
district.

Under the rule, the grant or denial of a motion for a
change of venue in a criminal case is within the trial court’s
discretion and, absent an abuse of that discretion, the ruling
will not be disturbed on appeal. See United States v.
Hunter, 672 F.2d 815, 816 (10th Cir.); United States v. Jobe,
487 F.2d 268, 269-70 (10th Cir.), cert. denied, 416 U.S. 955.

Unlike the Sheppard case, here Neal cites no specific
instance of prejudcial publicity. In addition, defendant can-
didly admits that “[t]here has been little pretrial publicity
concerning the particular appellant, Herb Neal. . .” (Brief
of Appellant at 12). Defendant contends, nevertheless, that
here the publicity “was even more insidious because the
publicity was administered in such a broad and bold stroke
that all defendants in these cases were tainted.” Id. at 12.

However, “... when publicity is about the event, rather
than directed at individual defendants, this may lessen any
prejudicial impact.” United States v. Hueftle, 687 F.2d 1305,
1310 (10th Cir.). Here defendant Neal submitted no evi-
dence to make a record about the pretrial publicity which
we can review. Moreover, “the proper occasion for determ-
ining juror partiality is upon voir dire examination.” United
States v. Lamb, 575 F.2d 1310, 1315 (10th Cir.), cert. denied,
439 U.S. 854. Neal has not designated the voir dire tran-
script as part of the record and we cannot speculate as to
what the record of that examination might reveal as to any
prejudicial effect on the venire.

On the record before us we see nothing to indicate that
the triai court abused its discretion in denying the venue
change, especially in a case such as this where, by Neal’s
admission, the publicity was not generally directed at him.
See United States v. Hueftle, supra, 687 F.2d at 1310.

ie

a I a Ra i a a nt eR Se A

[APPENDIX]

V

Neal’s final argument is that the trial court erred in
denying his motion in limine by which he attempted to
prevent the introduction of any evidence as to a scheme to
defraud or as to the payment of kickbacks which occurred
outside the times and places charged in the indictment. In
his brief in support of the motion he argued that such evi-
dence “would be prejudicial and cumulative” and unneces-
sary to prove the existence of a scheme in that evidence
as to the thirty-four counts charged should suffice. (I R.
143).

Here again our holding is guided by a companion opin-
ion which considered and rejected a similar argument. In
United States v. Primrose, No. 82-1842, _. F.2d ..... (10th
Cir.), where defendant-appellant Primrose was charged
with thirty-eight counts of mail fraud, among other things,
and substantial evidence of a scheme outside the time frame
charged in the indictment was admitted, we found no abuse
of discretion on the part of the trial court. As in the Prim-
rose case, here the court gave a cautionary instruction each
time such evidence was admitted (see e.g. VI R. 488) and,
in his charge to the jury, the judge instructed that evidence
of crimes concerning offenses not charged in the indictment
might be considered for the limited purpose of proof of
“motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident... .” (VII R.
986; see also Rule 404(b) F.R.E.). Slip op. at 15-17. On the
reasoning in Primrose, we conclude that Neal’s argument
is without merit.

VI

The defendant appellant has demonstrated no rever-
sible error in the record of his trial and accordingly the
judgment is

AFFIRMED.

APPENDIX B

[Received Court of Appeals, Oct. 14, 1983]

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, )
Appellee, )

vs. ) No. 82-2309
)
HERB NEAL, )
Appellant. )

PETITION FOR REHEARING

COMES NOW the Appellant, and Petitions this Court
for a Rehearing. In support of his Petition for Rehearing,
Appellant would point out to the Court that it has appar-
ently overlooked or misconstrued certain arguments raised
by Appellant in his Appeal.

Corcerning the examination of prospective Jurors, this
Court held that Voir Dire conducted by the Trial Court to
test the Jurors’ impartiality was not an abuse of discretion
and that the nature of the publicity in the County Commis-
sioner cases did not mandate greater care than was taken
so as to insure impartiality. The Court seemed to place
emphasis on the fact that none of the articles explicitly dealt
with the Appellant alone, and thus distinguish this case
from the Silverthorne case cited by Appellant in his Brief.

Appellant contends that it was not necessary for the
Pre-Trial publicity to be focused on him alone. The Thrust
and gist of the Pre-Trial publicity as evidenced by the
newspaper articles made part of the record was that there
was massive and widespread corruption among County
Commissioners and suppliers in the State of Oklahoma. In
fact, the scientific survey submitted into the record by the
Appellant, indicated that over ninety-four (94) per cent
of the people in the State of Oklahoma were aware of the

— Ee

2b

[APPENDIX]

Federal investigation into County Commissioner kickbacks
and that over sixty-two (62) per cent of the people of the
State of Oklahoma felt that there was widespread corrup-
tion among County Commissioners. This information alone
should have put the Trial Court on notice that there would
be people on the prospective Jury Panel with pre-formed
opinions. Yet the Trial Court failed to conduct a very
searching Voir Dire to discover whether there were any
persons on the Panel with pre-formed opinions. The Trial
Court, as does this Court, concluded that the Voir Dire was
sufficient because each Juror assured the Court that they
could be fair and impartial.

The Court has thus overlooked the thrust of the holding
in the recent case of United States v. Blanton, 700 F.2d 298
(6th Cir. 1983). The Blanton case was incorporated into
all the County Commissioner briefs and arguments by way
of subsequent letter to this Court. The Sixth Circuit con-
cluded from a survey of cases from nearly every Circuit
that perhaps not so much deference should be given to a
Juror’s assessment of his own impartiality. The Blanton
case involved a public figure and substantial Pre-Trial pub-
licity, as does the instant case. As in the instant case, the
Trial Court in Blanton failed to inquire into the nature and
extent of the Jurors’ exposure to Pre-Trial publicity. The
Court found that the Voir Dire conducted by the Trial
Court was not sufficient to determine the percentage of the
veniremen who had a preconceived opinion and was further
insufficient to determine the strength of the opinions, de-
spite the assurances by the Jurors that they could be fair
and impartial.

Appellant contends that the assurances of a Juror that
he can be fair and impartial should not be afforded much
deference in cases of substantial Pre-Trial publicity. That
at a minimum, a Trial Court should at least inquire into
the extent and sources of a Juror’s exposure to Pre-Trial
publicity. Only then will Counsel for Defendants be able
to adequately assess a Juror’s impartiality, and then in-

3b

CAPPENDIX)

telligently exercise pre-emptory challenges and challenges
for cause.

Appellant contends that his case was a proper one for
a more searching Voir Dire. He was a County Commis-
sioner in the State of Oklahoma at the time of Trial. There
had been widespread and massive publicity about the Fed-
eral Investigation into the so called kickback scandal in-
volving County Commissioners in the State of Oklahoma.
Evidence was introduced through Pre-Trial Motions that
a majority of the people in the State of Oklahoma thought
there was widespread corrvytion among County Commis-
sioners. The fact that the Appellant was not named spe-
sifically in these articles should not be determinative of
this issue, for the reasons heretofore cited.

WHEREFORE, the Appellant respectfully requests this
Court to grant a Rehearing on the issue of adequacy of the
Trial Court’s Voir Dires so thet he may further advance
the arguments cited in this Petition for Rehearing.

Appellant further contends that this Court has mis-
construed the Supreme Court’s holding in the Parr case.
The Court distinguishes Parr from the instant case appar-
ently because the persons who did the mailing in Parr were
not participants in the scheme. The Court states that the
Appellant’s reliance on Parr is misplaced because it rests
on his view of the vendors as outsiders rather than as par-
ticipants in the scheme. The Court states that if the scheme
is properly viewed as including the vendor’s receipt of
County business as well as the Appellant’s receipt of kick-
backs, then the analogy to Parr breaks down, yet the Court
fails to state why this is so.

Appellant contends that the Parr case is applicable to
the instant case for the reason that the mailing in each in-
stance are only incidental or collateral to the scheme, and
not for purposes of executing the alleged scheme. The
offenses involved in Parr and the instant case are of the
type that should be dealt with by appropriate State law.

4b

[APPENDIX]

They involve local officials misappropriating local funds.
The mails are not used to further the scheme to defraud
nor are they used to delay the detection of the scheme to
defraud. The fraud is executed when the County Commis-
sioner and the vendor meet and agree that a kickback
should be paid. That meeting of the minds is the gist of
the offense. How that fraud is achieved or carried out is
only a collateral matter. This type of scheme is unlike the
typical mail fraud scheme wherein the mails are used to
initiate or execute the fraud itself. In this case, the fraud
is executed without the use of the mails. The mailing of
the County Warrants or Invoices had no real affect on this
scheme for the reason that the scheme could have just as
easily taken place if the warrants and invoices had been
picked up by the supplier as they were in many instances.

In conclusion, the Appellant contends this Court has
broadened the mail fraud statute beyond the scope intended
by Congress. It has turned what is essentially a State or
Local offense into a Federal crime. The Supreme Court has
addressed a case similar to the one at bar and has held that
the mailings in question were not sufficient to invoke the
mail fraud statute.

Appellant respectfully requests this Court to reconsider
its holding in this case and reverse the mail fraud convic-
tions.

WHEREFORE, the Appellant respectfully requests this
Court to grant his petition for Rehearing and to hold fur-
ther argument in this case or in the alternative to reverse
the convictions on all counts for the above cited reasons
and if necessary, to remand this case to the District Court
for further proceedings.

Respectfully submitted,
HERB NEAL, Appellant

5b
[APPENDIX]

STIPE, GOSSETT, STIPE, HARPER, ESTES,
McCUNE AND PARKS

Post Office Box 1368
McAlester, Oklahoma 74502
918/423-0421

By: (s) Gene Stipe
Gene Stipe & Anthony M. Laizure

Attorneys for Appellant.

[Certificate of Mailing omitted this printing]

APPENDIX C

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

JANUARY TERM—February 17, 1984

Before Honorable William J. Holloway, Jr., Honorable Rob-
ert H. McWilliams and Honorable Stephanie K. Seymour,
Circuit Judges.

UNITED STATES OF AMERICA, )
Plaintiff-Appellee. )

vs. ) No. 82-2309
)
HERB NEAL, )
Defendant-Appellant. )

This matter comes on for consideration of appellant’s
motion for leave to file petition for rehearing out of time
and appellant’s petition for rehearing.

Upon consideration whereof, the application to file pe-
tition for rehearing out of time is granted to and including
October 14, 1983.

It is further ordered that appellani’s petition for re-
hearing is denied.

HOWARD K. PHILLIPS, Cierk

By (s) Robert L. Hoecker
Chief Deputy Clerk

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2744%3A1. Public record. Not legal advice.